Brief in Opposition to Petition for Writ of Certiorari — Southwest Magazine Co. v. City of Fort Worth

; OWice-Sunreme Court, U.S.

LIBRARY FILED

No. 724 JOHN F. DAVIS, CLERK

IN THE

SUPREME COURT OF THE UNITED STATES .<

OCTOBER TERM 1%

SOUTHWEST MAGAZINE CO.. Petitioner,

A

CITY ©F FORT WORTH, Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

S. G. JOHNDROE, JR.

Gity Attorney

JEROME H. PARKER, JR.

Assistant City Attorney

r.

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1000 Throckmorton Street

Fort Worth 2, Texas

Attorneys for City OF

Fort Worth :

S. G. JOHNDROE, JR.

‘Of Counsel

-TABL EO OF ( ‘ONTENTS

Jurisdiction

Questions Presented

Statement of the Case

No Substantial Federal Question is Raised by the

Petition a

The Court of Civil Appeals at Fort Wortn and the

Supreme Court of Texas Were Correct in Revers-

ing the Judgment of the Trial Court and Rendering

Judgment for the City Because Petitioner Had No

Vested Right in Having a Railway Spur Track

Permanently Maintained in 7th Street Superior to

‘the Right of the Public to "’se and Control Such

Street, the Franchise of the Railway C ompany Had

Expired, ‘and the Public Safety Required Such

Removal

Conclusion >

TABLE OF CASES

Ashwander v. Tennessee Valley Authority,

297 U.S. 288

°

Barron v. The Mayor and City Council of Baltimore,

7 Peters 243

Burton v. United States, 196 US. OR3

Delaware, L. & W.R. Co. v. Town of Morristown,

276 U.S. 182

Detroit United Ry. v. City of Detroit, 255 U.S. 171

Detroit United Railway v. Detroit, 229 U.S. 39

Erie R. Co. v. Board of Public Utility Commissioners,

254 U.S. 394 . z

Joseph v. City of Aestin, 101 S. W. 24 381

Monongahela Navigation Co. v. U nited States,

site pce Bagg, A:

Pennsylvania Coal Co. v. Mahon, 260 US : S. 393°

State of Arizona r. State of California, 283 U.S. 423

8-12

12-18

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CONSTITUTIONAL, CHARTER AND STATUTORY

PROVISIONS

Page

Constitution of the State of Texas,

Article I, Section 17 ................................0.... WARaaer

Gammell’s Special Laws, Vol. 11 (1901) —..00.0.......... 5

Gammell’s Special Laws, Vol. 12 (1905) ................. ae

Revised Civil Statutes of the State of Texas,

I te Se

MINI onh nn se cderchcnicallcncnaneasenanmiaaeacsnieesicho/edeadounas 8

oOo

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TER 4 962

No. 724

SOUTHWEST MAGAZINE CO., Petitioner,

v. ‘4

CITY OF FORT WORTH, Respondent.

BRIEF IN OPPOSITION TO PETIFION FOR

WRIT OF CERTIORARI

Jurisdiction

No substantial federal question compelling review is

presented in this case, and therefore no jurisdiction

exists to review the decision of the Court of Civil .

Appeals for the. Second Supreme Judicial District of

. Texas at Fort Worth and. of the Supreme Court of

Texas. Ashwander v. Tennessee Valley Authority, 297

U. S. 288; State of Arizona v. State of California, 283

U. S. 423. It is fundamental that the provisions of the

Fifth Amendment to the Constitution of the United

States are intended solely as a limitation on the exer-

cise of power by the Government of the United States

and are not applicable to the legislation of the States.

Barron v. The Mayor and City Council of Baltimore,

7 Peters 243.

2

Questions Presented

None of the purported questions presented for re-

view by Petitioner have any bearing on the material

facts of record in this case and are not in strict com-

pliance with Rule 23. :

Petitioner owned no interest in the railway spur

track and had no contractual right to the maintenance

of rail service, and the Chicago, Rock Island & Gulf

Railway Company, the owner of the spur track, whose

franchise had expired in 1932, is not a party to this

suit. Thus, on the factual record in this case, the only

questions presented for review can be the following :

1. Does the City have the power to require the re-

moval of a railway spur track from its street

after expiration of the Railway Company’s fran-

chise? ‘

2. Where the franchise of a Railway Company per-

> mitting maintenance of a spur track in a public

‘street has expired, is an adjacent landowner en-

titled to compensation from the City as a result

of the removal of the track?

3. Does an adjacent landowner have a vested right

® and irrevocable special privilege to have a rail-

way spur track permanently maintained in a

street superior to the right of the public to use

such street and superior to the right and duty

of the City to control such public street?

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Statement of the Case

As stated by Petitioner, this is a declaratory judg-

ment suit. After being informed that the City of Fort

Worth and the State of Texas had determined ‘that it

was necessary for the safety of the public that a rail-

way spur track be removed from 7th Street adjacent

to Petitioner’s property, Petitioner brought this ‘suit

seeking" to establish a vested right to have such rail-

Way spur track remain permanently in 7th Street, a

dedicated public street in the City of Fort Worth.

The trial court rendered a summary declaratory

judgment in. favor of Petitioner.

The Court of Civil Appeals reversed and rendéred °

the wtiscrily iter of the trial court, holding

that the franchise to the Railway Company éxpired

in 1932; that the action of the City was a reasoriable

exercise of the police power; that the interest of the

public was paramount; that the State may insist that

the streets be kept free of danger; that the City of

Fort Worth was not taking away Petitioner’s “access”

to its property; and that the City has a nondelegable

and inescapable duty to maintain its streets in usable

condition and to abate any permanent obstruction or

encroachment which would interfere with their pres-

ent, of might interfere with their future, use by the

public as the progress of the City may demand.

The Court of. Civil Appeals further held that the

railway spur track, with standing or moving railway

cars, is an obstruction in the public street; that, al-

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though “not particularly hazardous” presently, 7th

Street is a main artery from the west into downtown

Fort Worth, and when the projected improvement by

the State of Texas is completed, whereby 7th Street

will join with an existing Interstate Freeway System,

traffic to Merce increase enormously along 7th

Street, an tinued use of the spur track would

constitute a serious menace to the traveling public.

Further, the court held that the material in a railway

track is personal property; that the spur in the instant

suit*was not on Petitioner’s land; that none of Peti-

tioner’s land will be taken; and that the spur track did

not belong to Petitioner and was not constructed by

Petitioner, but was constructed and owned by the

Railway Company. -

There was no’pleading nor proof that the Railway

Company had any contractual obligation with the

Petitioner to continue to operate and serve Petitioner

on the spur track.

As we have previously stated, the Chicago, Rock

Island & Gulf Railway Company, the owner of the

spur track, is not 4 party to this suit. Only Petitioner,

the adjacent landowner, claims and urges that the

expired franchise of the Railway Company created an

irrevocable special privilege in favor of Petitioner of

having the railway spur track permanently main- ~

tained in thé public street.

Twelve Texas judges have unanimously rejected

all of the contentions urged by Petitioner. ;

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1. |

No Substantial Federal Question is Raised by the

Petition.

Petitioner’s sole claim to a vested rigjt to have the

railway spur track maintained in 7th Street is based

upon the franchise granted in 1907 to the Chicago,

Rock Island & Gulf Railway Company in Ordinance

No. 980 of the City of Fort Worth. (Tr. p. 87) This,

franchise was granted pursuant to a statute of the

State of Texas which at the time constituted the spe-

cial charter of the City of Fort Worth (11 Gammell’s

Special Laws 1901, page 13; 12 Gammell’s Special

Laws 1905, page 265).

Section 55d of such special charter specifically pro-

hibited the granting of any such franchise for a longer

period than twenty-five years. Section 55d provides in

part as follows:

“***No franchise for a longer period than

twenty-five years shall ever be granted or given

by the City of Fort Worth.”

The 1907 franchise of the Chicago, Rock Island &

Gulf Railway Company was_ never renewed or ex-

tended and expired asa matter of law no later than

the year 1932. At page 10 of “Brief for Appellee” in

the Court of Civil Appeals, Petitioner admitted the

expiration of the franchise as follows:

“It is true that Rock Island lost its exclusive

right to use said tracks, to, the exclusion of all

others in or about 1932.’”

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While it is contended that the decision er con-

flicts with Monungahela Navigation Co. v.- United

States, 148 U.S. 312, Pennsylvania Coal ey v. . Maden.

260 U.S. 393, and Delaware, L. & W. R. Co. v. Town

of Morristown, 276 U.S. 182, this is not correct. The

fact situations in gach and every one of those cases

were entirely different from the case at bar. Even a

cursory examination of the authorities cited by Peti-

tioner reveals that théy have no application to the

case at bar and wholly fail to demonstrate any federal

question of substance not heretofore decided by this

Court.

There has been, in fact, no “taking” of Petitioner’s

private property in violation of the Constitution of

the United States or of Article I, Section 17, of the

Constitution of the State of Texas. The railway spur

track in question is situated wholly within the paved

and traveled portion of 7th Street. The Petitioner is

seeking to destroy the power of the City of Fort Worth

to contre’ the use of its streets and to remove obstruc-

tions therefrom.

Th%* Court has decided the precise question raised

he» adversely to Petitioner in Detroit United Ry. v.

ity of Detroit, 255 U.S. 171, and the companion case

of Detroit United Railway v. Detroit, 229 U.S. 39,

and held that where a railway company operating in

the streets of a city under a municipal franchise has

enjoyed the full term of its grant, it no longer has

any property right or easement in the street. In those

cases the railway company contended that the fact

that it accepted the franchise and — large sums

at |

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P

of money constructing its facilities in the street en-

titled. it to a permanent vested right therein, in the

nature of #n easement which continued after the ex-

piration of the franchise. The railway company fur-

ther contended that the act of the city in denying

the railway company the right to operate its lines

without a franchise violated the Constitution of the

United States and deprived it of its property without

due process of law. This Court met these contentions

head-on and rejected them, holding that the munici-

pality may require the railway company to remove

its tracks without impairing any contractual obliga-

tions protected by the Federal Constitution or depriv-

ing the railway company of its property without due

process of law.

: It is clear from these authorities that the Chicago,

Rock Island & Gulf Railway Company possesses no

permanent vested right to maintain the railway spur

track in 7th Street. Clearly Petitioner, Southwest

Magazine Co., can claim only through the Rock Island

franchise and can possess no greater right than the

Railway Company. Under these circumstances, no

substantial federal question exists for review by this

Court, and further under the factual record in this

case there is no absolute necessity to decide any pur-

ported, constitutional questions. Burton v. United

States, 196 U.S. 283; Ashwander v. Tennessee Valley

Authority, 297 U.S. 288, 324-325, 347-348.

8

The Court of Civil Appeals at Fort Worth and the

Supreme Court of Texas Were Correct in Reversing

the Judgment of the Trial Court and Rendering Judg-

ment for the City Because Petitioner Had No Vested

Right in Having a Railway Spur Track Permanently

Maintained in 7th Street Superior to the Right of the

Public to Use and Control Such Street, the Franchise

of the Railway Company Had Expired, and the Fagbtic

Safety Required Such Removal.

Petitioner seeks to support its claim to a vested

interest in the railway spur track by contending that

the spur track constituted a perpetual easement upon

its own land of access to abutting property by rail and

by referring to the fifty-five year period that the track

has been in use. The holdings of the Court of Civil

Appeals and the Supreme Court are to the effect that

the fact of such use is wholly immaterial to the issues

in this case.

Article 5517 of the Revised Civil Statutes of TeXas

provides that no person shall ever acquire by occu-

pancy or adverse possession any right or title to any

portion of any road, street, alley or sidewalk. The

Legislature of the State of Texas, in the adoption of

Article 1175 of the Revised Civil Statutes of the State

of Texas, expressly delegated to the City of Fort

Worth exclusive dominion and contro! over its streets

and alleys. (Paragraphs 12, 16, 18 and 34, Art. 1175,

nC. &.)

4

Article I. Section 17, of the Teas Constitution spe-

9

/ cifically provides in part the following:

{

“***ond no irrevocable or uncontrollable grant

of special privileges or. immunities shall be made.

but all privileges and franchises granted by the

Legislature, or created under its authority, shal

be subject to the control thereof.”

e

By reason of the undisputed fact that the railway

spur track is located wholly within the public right

of way dedicated for street purposes, the Respondent,

City of Fort Worth, has a duty to remove such ob-

struction. More partieularly this is true where an ex-

tremely hazardous condition from the standpoint of

vehicular traffic is present or is anticipated.

This Court has held that a municipality is not re-

quired to await*a collision costing the lives of its

citizens, as well as great expense to the parties in-

volved, before acting and performing its duties, and

further has confirmed the fact that a situation in °

which railway tracks and rolling stock use and oecupy

public streets is one that is always dapgerous as a

matter of law. Erie R. Co. v. Board of Publie Utility

Commissioners, 254 U.S. 394.

The effect of Petitioner’s contentions throughout

this case has been that the Respondent, City of Fort

"Worth, is required by law to permit Petitioner to

blockade (in perpetuity) a public street for its private

benefit upon and across property held in trust by the

City for the benefit of the genéral public. ,

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The fallacious nature of Petitioner’s reasoning can

be readily demonstrated, for it is beyond cavil that

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the Respondent, City of Fort Worth, has plenary power

in the control of its streets, alleys and public thor-

oughfares. Historically this Court and all.of the courts

of the State of Texas have held in an unbroken line of

decisions that any private obstruction in a street i

a nuisance per se. '

In Joseph v. City of Austin, 101 S.W. 2d 381, writ

refused, the court held:

“***The law is settled that as against the pub-

lic the .city could not give the abutting property

owners the right to construct permanent obstruc-

' tions on any portion of a street dedicated to pub-

lic use by map and plat of an addition. *** In

the exercise of these duties the city is required to

take possession of the dedicated street and to

preserve it, and to cause to be removed or abated

any permanent structure which might interfere

with its full and. free use by the public. Such is

net only the right and power of the city, but it is

its nondelegable and inescapable duty to maintain

its streets in usable condition, and to abate any

permanent obstruction or encroachment which

would interfere with their present, or might in-

terfere with their future use by the public as the

progress of the city may demand. City of San

Antonio v. Ashton (Tex. Civ. App.) 135 S.W, 757,

error refused; Coombs v. City of Houston (Tex.

Civ. App.) 35 S.W. (2d) 1066; City of Lockhart

v. Commissioners’ Court of Caldwell County (Tex.

Civ. App.) 278 S.W. 319, error refused.

“The law is also settled in this connection that

anything placed in a street or highway of a per-

manent nature, like a fence, building, or wall, is

an obstruction and a nuisance per se, if such ob-

11

struction renders the street less commodious for

public uses. 21 Tex. Jur. 716, $ 201, and cases

cited in footnotes 14 to 20. This is the rule in

Texas and in all jurisdictions, nofiwithstanding

. space is left for the passage of the public. The rule

and the reasons therefor are well stated in the

following cases from other jurisdictions:” (Citing

authorities) (Emphasis supplied)

This Court will observe in its examination of the

record, and more particularly the deposition of C. M.

Thelin, Director of Public Works of the City of Fort

Worth, that there will be no unlawful interference ©

whatsoever with Petitioner’s access to or from 7th

Street. No fence or wall has been, or will be, erected

between [etitioner’s property and the boundary of

7th Street. <- , 0

Respondent submits that the authorities cited in the

opinion of the Court of Civil Appeals dispose of all

Petitioner’s contentions that it has been,deprived of

access. 18

Actually, the situation involved in the case at bar

resolves itself into the single issue of sustaining an

application of the police power of Respondent, City of

Fort Worth, in cor trolling the use of its public streets

and thoroughfares held in trust for the benefit of the

general public. Plainly and simply all we have involved

is the removal of a railway spur track in 1962, the

franchise for which admittedly expired in 1932. The

railway spur track is presently, and will continue to

be, an imminently dangerous obstruction. The authori-

ties disclose not only that Respondent has the right

12

to remove such an obstruction in the exercise of its

police power, but also that it has a duty to remove

same. Thus, the Respondent, City of Fort Worth, is

merely exercising its power and duty to impose traffic

regulations with respect to the use and occupancy of

7th Street.

Conclusion

It is abundantly clear from the uncontroverted rec-

ord in this case that the opinion of the Court of Civil

Appeals and its reversal and rendition of the judg-

ment of the trial court is absolutely correct. It has

never been the law in this State or in any State that

there can be any permanent and perpetual vested right

or easement to have a railway spur track located in

the public street adjacent to one’s property; it has

never been the law in this State or in any State that

one can obtain a vested right or an irrevocable special

privilege to have a railway spur track permanently

maintained in the street “superior to the right of the

public to use the street” and superior to the authority

of the legislative body to control the public streets.

More particularly is this true when the uncontroverted

record discloses that the franchise of the Railway

‘Company had, in fact and in law, admittedly expired

in 1932.

The decision of the Texas Court of Civil Appeals

as set forth on pages 26 through 33 in Appendix “B”

of the Petition, which was in effect affirmed by the

Supreme Court of| Texas without a written opinion,

Appendix “C”, page 34 of the Petition, is in all re-

15

spects correct, and upon that opinion and for the fore-

going reasons the Petition for Writ of Certiorari in

this case should be denied.

Respectfully submitted,

§-G-JOHNDROE, JR.

City Attorney

JEROME H. PARKER, JR.

Assistant City Attorney

By 7 os ; Totiltctt —_—

Attorneys for City of Fort Worth

1000 Throckmorton? Street

Fort Worth 2, Texas

Copies of this Brief in Opposition to Petition for

Writ ‘of Certiorari have been served as provided by

Rule 33 by personal delivery to counsel or a clerk. in—/

the office of Crumley & Hooper and Winfred Hooper lao

Jr., 1405 Fair Building, Fort Worth, Texas, this -

day of January, a sx jot: peleoelle

Counsel for Respondent